Citation Nr: 0719219
Decision Date: 06/26/07 Archive Date: 07/05/07
DOCKET NO. 03-09 988 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
A. Cryan, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to November
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.
The veteran's case was remanded to the RO for additional
development in April 2005. The case is again before the
Board for appellate review.
FINDING OF FACT
The veteran's diabetes mellitus is not related to military
service.
CONCLUSION OF LAW
The veteran's diabetes mellitus is not the result of disease
or injury incurred in or aggravated during active military
service; it may not be presumed to have been incurred in or
aggravated during active military service. 38 U.S.C.A. §§
1101, 1110, 1112 (West 2002 and Supp. 2007); 38 C.F.R. §§
3.102, 3.303, 3.304, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110 (West 2002 and
Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2006). In addition,
certain chronic diseases, including diabetes mellitus, may be
presumed to have been incurred during service if the disorder
becomes manifest to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002 and Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2006).
The chronicity provisions of 38 C.F.R. § 3.303(b) are
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service, or during an
applicable presumptive period, and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which under case law of the United States
Court of Appeals for Veterans Claims (Court), lay observation
is competent.
Service connection may be established on the basis of 38
C.F.R. §3.303(b) if the condition is noted during service or
during an applicable presumptive period, and if competent
evidence, either medical or lay, depending on the
circumstances, relates the present condition to continued
symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997).
Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. Pond v. West, 12 Vet. App. 341, 346
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).
Certain diseases associated with exposure to herbicide agents
may be presumed to have been incurred in service even though
there is no evidence of the disease in service, provided the
requirements of 38 C.F.R. § 3.307(a)(6) (2006) are met. See
38 C.F.R. § 3.309(e) (2006). The term "herbicide agent"
means a chemical in an herbicide used in support of the
United States and allied military operations in the Republic
of Vietnam during the Vietnam era. The diseases for which
service connection may be presumed to be due to an
association with herbicide agents include Type 2 diabetes
(also known as Type II diabetes mellitus or adult-onset
diabetes). In general, for service connection to be granted
for one of these diseases, it must be manifested to a degree
of 10 percent or more at any time after service. Chloracne,
porphyria cutanea tarda, and acute and subacute peripheral
neuropathy must be manifest to a degree of 10 percent within
one year after the last date on which the veteran performed
active military, naval, or air service in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975. See C.F.R. § 3.307(a)(6)(ii) (2006);
68 Fed. Reg. 34,541 (June 10, 2003) amending 38 C.F.R. §
3.307(a)(6)(iii) implementing the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115
Stat. 976 (2001). A veteran who served in the Republic of
Vietnam during the period beginning on January 9, 1962, and
ending on May 7, 1975, will be presumed to have been exposed
during such service to an herbicide agent unless there is
affirmative evidence to the contrary. Id. Service in the
Republic of Vietnam includes service in the waters offshore
and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam. 38
C.F.R. § 3.307(a)(6)(iii) (2006).
The veteran served on active duty from April 1969 to November
1970. He served in the Republic of Vietnam from September
1969 to November 1970.
The veteran's service medical records are negative for any
reference to treatment for or a diagnosis of diabetes
mellitus. His November 1970 separation examination revealed
a normal endocrine system. A blood sugar test was noted to
be negative.
Associated with the claims file are private treatment reports
from Freeport Memorial Hospital dated from February 1973 to
March 1978. In February 1973 the veteran was admitted with a
diagnosis of uncontrolled diabetes mellitus. The final
diagnosis was controlled diabetes mellitus. At his admission
the veteran reported weight loss for two months prior to his
admission, increased thirst, and large urine output. The
veteran was admitted for ketoacidosis in March 1978. He was
noted to have diabetes mellitus.
Associated with the claims file are VA outpatient treatment
reports dated from April 1978 to November 2002. No treatment
records dated in 1971 were found. In June 1978 the veteran
was noted to have a six-year history of type I diabetes
mellitus. Treatment reports dated in September 1982 reflect
that the veteran was noted to have a ten-year history of
diabetes mellitus type I. Uncontrolled diabetes mellitus.
type I with neurological manifestation, was recorded as one
of the veteran's health problems in July 1996. In May 1997
the veteran was noted to have a twenty-five year history of
diabetes mellitus type I. On diabetes evaluations dated in
April 1998 and December 1998 the veteran was noted to have
type I diabetes mellitus and on diabetes evaluations dated in
August 1998 and December 1998 the veteran's diabetes mellitus
was noted to be type II. The veteran was noted to have
severe diabetes (type I) in January 1999. The veteran was
noted to have type I diabetes in March 2000 and September
2000 which was reported to have been diagnosed when the
veteran was twenty-one years old. The veteran was treated
for diabetes type II in January 2001 and for diabetes
mellitus type I in July 2001. The veteran was noted to have
diabetic complications including retinopathy, neuropathy, and
erectile dysfunction. Treatment reports dated in November
2002 reveal that the veteran was reported to have a long
history of severe type I diabetes mellitus. He was noted to
be status post a minimally displaced medial malleolar
fracture of the left ankle. Due to the likelihood of skin
breakdown requiring urgent intervention, the veteran opted to
pursue a below-the-knee amputation of his left leg. Other
treatment notes refer to the veteran's diagnosis as
"diabetes mellitus."
The veteran was afforded a VA examination in July 2001. The
veteran reported that he was developed diabetes mellitus in
February 1971 at age 21 by a "very high" blood sugar. He
said he was placed on oral agents for several weeks which did
not work and he was subsequently placed on insulin. The
veteran denied a family history of diabetes. The examiner
diagnosed the veteran with diabetes mellitus. He said the
veteran had chronic complications of diabetic retinopathy,
gastroparesis, and peripheral neuropathy. He noted that it
was surprising that there was no diabetic neuropathy. The
examiner concluded, based on the veteran's age at diagnosis,
that it is likely the veteran has diabetes type I. He noted
the veteran has required steadily increasing insulin doses
for the last several years which suggested that there may be
a component of insulin resistance.
The veteran was afforded a VA examination in July 2005. The
veteran reported that he was diagnosed with diabetes in
February 1971. He reported having been placed on pills for
six months (the examiner noted the veteran previously
reported that he took pills for three weeks) which stopped
controlling his diabetes and he was placed on insulin. He
said he has been insulin dependent since that time. The
examiner noted that the first evidence of a diagnosis of
diabetes mellitus was documented in February 1973 at Freeport
Memorial Hospital. He noted that the veteran used an insulin
pump to regulate his diabetes. The examiner diagnosed the
veteran with classic type I diabetes. He said there is
nothing to suggest that the veteran is a type II diabetic.
The examiner noted that the brief period of not needing
insulin after the veteran's initial diagnosis does not
suggest type II diabetes. The examiner said this was a well-
known phenomenon with type I diabetes which is referred to as
the "honeymoon period" and in no way indicated type II
diabetes. The examiner noted that the veteran left service
in November 1970 and was diagnosed with diabetes in February
1973, as indicated by the available medical records. The
examiner opined that it was highly unlikely that the veteran
would have been diabetic without treatment for more than a
year prior to the 1973 diagnosis without dying from diabetic
ketoacidosis. The examiner noted that the 1973 medical
records indicated that the veteran's symptoms began about two
months prior to his diagnosis. The examiner noted that it is
not unusual to have the onset of type 1 diabetes several
months prior to actual diagnosis but more than a year prior
to diagnosis for a type I diabetic was highly unlikely. The
examiner concluded that based on the medical records
available the veteran was diagnosed with diabetes in February
1973 and it is not as likely as not that he had diabetes
prior to his discharge from service. He also noted that the
1973 treatment report included reference to the fact that the
veteran had no prior illness.
The medical evidence of record indicates that the veteran was
diagnosed with diabetes mellitus no earlier than 1973. While
the veteran served in Vietnam, the evidence of record
indicates that the veteran has type I diabetes mellitus. The
Board acknowledges that the veteran's diabetes has at times
been referred to as type II; however, when examined for the
purpose of determining which type of diabetes the veteran
has, the July 2005 examiner diagnosed the veteran with
classic type I diabetes. He said there was nothing to
suggest that the veteran is a type II diabetic. The examiner
noted that the brief period of not needing insulin after the
veteran's initial diagnosis in 1973 does not suggest type II
diabetes. The examiner said this was a well-known phenomenon
with type I diabetes which is referred to as the "honeymoon
period" and in no way indicated type II diabetes. This
explanation appears to be the most thorough one of record and
is consistent with what earlier records show. Thus, the
Board is persuaded by the examiner's conclusion that the
veteran's diabetes is type I, not type II. Therefore, the
veteran cannot establish service connection for his diabetes
on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309.
The veteran's service medical records are negative for any
indication of diabetes or elevated glucose levels during
active military service. The November 1970 blood sugar test
was noted to be negative. The veteran was not treated for
any complaints associated with diabetes in service and there
is no diagnosis of diabetes in service. There is no
competent evidence of record to relate his current diabetes
to his military service.
As previously noted, the medical evidence of record shows
that the veteran's diabetes mellitus was first diagnosed in
1973, and the greater weight of the competent evidence
indicates that it did not manifest itself until just a few
months before the veteran's 1973 admission at Freeport
Memorial Hospital. The VA examiner was the only one to
analyze the likelihood that the veteran had diabetes before
those first symptoms and opined that it was unlikely. Given
this uncontradicted medical opinion, the Board finds that
there is no basis to establish service connection on a
presumptive basis. 38 C.F.R. § 3.307(a)(3). Additionally,
as noted above, the presumption based on service in Vietnam
does not apply here. The preponderance of the evidence is
against the claim.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits. The
Board is unable to identify a reasonable basis for granting
service connection for diabetes mellitus. Gilbert v.
Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. §
5107(b) (West 2002 and Supp. 2006); 38 C.F.R. § 3.102 (2006).
In deciding the issue in this case, the Board has considered
the applicability of the Veterans Claims Assistance Act of
2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 and Supp. 2006). The Board has also
considered the implementing regulations. 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a).
Under 38 U.S.C.A. § 5103, the Secretary is required to
provide certain notices when in receipt of a complete or
substantially complete application. The purpose of the first
notice is to advise the claimant of any information, or any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. The
Secretary is to advise the claimant of the information and
evidence that is to be provided by the claimant and that
which is to be provided by the Secretary. 38 U.S.C.A. §
5103(a) (West 2002 and Supp. 2006). In those cases where
notice is provided to the claimant, a second notice is to be
provided to advise that, if such information or evidence is
not received within one year from the date of such
notification, no benefit may be paid or furnished by reason
of the claimant's application. 38 U.S.C.A. § 5103(b) (West
2002 and Supp. 2006). In addition, 38 C.F.R. § 3.159(b),
details the procedures by which VA will carry out its duty to
notify.
The RO notified the veteran of the evidence/information
required to substantiate his claim for service connection in
a letter dated in July 2001. He was informed of the elements
to satisfy in order to establish service connection. He was
advised to submit any evidence he had to show that he had a
current disability and to identify sources of
evidence/information that he wanted the RO to obtain on his
behalf. The veteran was sent a follow-up letter in April
2005 and informed of the status of his case. He was
requested to provide consent forms for each non-VA doctor who
had treated him for diabetes, including where he was first
diagnosed and where he first received treatment, as well as
earlier treatment reports from Freeport Memorial Hospital and
any pertinent insurance records.
In reviewing the requirements regarding notice found at 38
U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot
find any absence of notice in this case. As reviewed above,
the veteran has been provided notice regarding the type of
evidence needed to substantiate his claim, what VA would do
to assist, and what was expected of him, including the
presentation of all pertinent evidence he was aware of. In
summary, the Board finds that no additional notice is
required under the provisions of 38 U.S.C.A. § 5103 as
enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio
v. Principi, 16 Vet. App. 183, 187 (2002). Additionally,
while notice was not provided as to the criteria for rating
diabetes mellitus or with respect to effective dates, see
Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Board does
not have jurisdiction over such issues. Consequently, a
remand of the service connection claim is not required.
Regarding VA's duty to assist under 38 U.S.C.A. § 5103A and
38 C.F.R § 3.159(c)(1)-(3), the Board notes that the RO has
obtained service medical records, private treatment reports,
and VA treatment reports. The veteran was afforded two VA
examinations. Therefore, the Board finds that the VA has
complied with the duty-to-assist requirements found at 38
U.S.C.A. § 5103A and 38 C.F.R § 3.159(c)-(e) (2006).
ORDER
Entitlement to service connection for diabetes mellitus is
denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs